Drugs in the workplace is unfortunately a growing reality for many employers that often leads to a clash between employers' health and safety obligations and employees' right to privacy. This is especially true when employers wish to search employees' belongings.
It is a well-established principle that employees have a lower expectation of privacy in the workplace and that an employer can, unless there is a restriction in a collective agreement or in another legally binding source, perform a search of an employee's personal belongings when it has reasonable grounds to do so. This principle was recently reiterated and clarified in an arbitration decision rendered in Quebec.
The employee was a forklift operator in a meat processing plant. Due to recurring issues with drug use and drug trafficking in the workplace, the employer had recently amended its drug and alcohol policy and had asked the Quebec provincial police (SQ) to intervene to attempt to eradicate the problem. The SQ sent an undercover agent to the employer's premises.
After a few months of undercover work, the SQ suspected that the employee was involved in drug trafficking at work. Also, other employees referred to the employee as the "postman" because he delivered drugs during his shift. After being informed that a drug transaction had taken place in the workplace, the employer searched several employees' lockers. During the search of the employee's locker, the employer found a scale and cannabis. The employer suspended the employee for one month. In addition to the suspension, the employer requested that the employee sign a last chance agreement. When the employee refused to sign the agreement, the employer terminated his employment.
The union filed a grievance in which they contested the disciplinary measures, alleging that the search conducted by the employer violated the employee's right to privacy and other sections of the Quebec's Charter of Human Rights and Freedoms.
In his decision, the arbitrator applied the principle set out by the Supreme Court of Canada that a breach of the right to privacy will be established only if the person has a reasonable expectation of privacy in a particular space (such as a locker). Also, the expectation may vary based on the circumstances.
It is well recognized that a person's expectation of privacy is lower in the workplace. In matters of drug and alcohol in the workplace, employers have the obligation to take the necessary measures to protect the health and safety of their employees in the workplace. Such measures often include the adoption of policies that prohibit the consumption, possession and sale of drugs and alcohol, similar to the one that the employer had adopted in this case. The arbitrator found that an employer can "[translation] legitimately conduct a search if it has reasonable grounds to believe that a corporate rule has been violated or is being violated, and that the proof of that violation is found in a specific place or on the person of the employee." Such reasonable grounds may arise from information provided by employees or from the employer's personal observations or from a combination of both.
In this case, the evidence revealed that the employer was dealing with a serious drug trafficking problem that required the intervention of the provincial police. The employer also had to act quickly considering the safety sensitivity of the workplace. Furthermore, the employer's decision to search the employee's locker was based on multiple reliable sources of information. Therefore, the arbitrator found that the employer had reasonable grounds to believe that the employee had violated its drug and alcohol policy and, consequently, to search his locker. The employee was aware of the policy and, following the search, had clearly violated it.
The arbitrator found that the employee could not refuse to sign the last chance agreement unless it contained conditions that violated rules of public order, the law or the collective agreement. The arbitrator found that the return to work conditions were not unreasonable and were imposed in good faith by the employer. This was because the employer operated a safety sensitive business, had a duty to protect the health and safety of its employees, the employee had issues with drugs in the past, and the employer had to ensure that the employee would not commit such acts in the future. Therefore, the employer's decision to terminate the employee's employment was justified.
Takeaways for employers
This decision predates the legalization of cannabis in Canada. Despite the fact that cannabis is now legal, employers can still set rules governing possession, use, and impairment by cannabis at work. The decision is a reminder of the importance of having clear and updated policies on the matter, the limits of employees' expectations of privacy in the workplace, and the weight that is given to employers' health and safety obligations. With reasonable grounds to believe that an employee is in violation of a drug and alcohol policy, employers can search the belongings of its employees.
For more information see:
Viandes du Breton inc. et Syndicat des travailleuses et travailleurs de Viandes du Breton (CSN) (Rioux Legace), Re, 2018 QCTA 386 (Que. T.A.).
R. v. M. (M.R.),  3 S.C.R. 393 (S.C.C.).
Louis Thomas Bélanger is an associate within the Labour, Employment, and Human Rights Group with Fasken in Montreal. He can be reached at (514) 397-5260 or firstname.lastname@example.org. This article was reprinted with the permission of Fasken. Fasken is one of the world's leading international business law and litigation firms. You can read Fasken's weekly bulletin, "The HR Space" here.